guardianships

When a non-parent person is appointed as a guardian over a minor, they have legal responsibilities that are similar to that of a parent.  For example, a guardian can make personal decisions for a minor in their care.  These decisions include such things as living arrangements, education, social activities, and authorization or withholding of medical or other professional care, treatment, or advice.  A guardian has the duty to make decisions that are in the best interests of the minor.

There are two types of guardianships that can occur in Arizona and each has a vastly different standard and requirement.

Title 8 Guardianship:

Under A.R.S. § 8-871, a Permanent Guardianship is a relationship between an adult and a minor that gives the adult legal authority to make decisions for the child.  The guardian takes on all of the responsibilities of the parent and makes decisions concerning the education, living arrangements, and medical care of the child.  Permanent Guardianships only arise out of a DCS case, and must be approved by the court at a permanency planning hearing.

A court may establish a permanent guardianship between a child and the guardian if the prospective guardianship is in the child’s best interest and all of the following apply:

1.       The child has been adjudicated a dependent child.

2.       The child has been in the custody of the prospective permanent guardian for at least nine months as a dependent child.  The court may waive this requirement for good cause.

3.       If the child is in the custody of the division or agency, the division or agency has made reasonable efforts to reunite the parent and child and further efforts would be unproductive. The court may waive this requirement if it finds that reunification efforts are not required by law or if reunification of the parent and child is not in the child's best interests because the parent is unwilling or unable to properly care for the child.

4.       The likelihood that the child would be adopted is remote or termination of parental rights would not be in the child's best interests.

The court may consider any adult as a permanent guardian.  If the child is at least 12 years old, the court must appoint a person nominated by the child, unless it would not be in the child’s best interest.  The court must also consider the child’s objection to the appointment of the person nominated as permanent guardian.

Title 14 Guardianship:

Under A.R.S. § 14-5202, a guardian for a minor can be appointed by the Will of a deceased parent or guardian.  Additionally, under A.R.S. § 14-5207 a person can request to be a guardian to a minor by filing a petition with the court.

 If a party files a petition for the guardianship of a minor, the party must give notice to other interested parties.  Generally, the interested parties include: the minor if they are over fourteen years of age, any person who has had principal care and custody of the minor for the sixty days prior to filing the petition, and any living parent of the minor.

Before the court will appoint a guardian, the individual must provide background information to the court to prove they are capable and that appointment would be in the best interests of the minor.  Such information may include, but is not limited to, any felony history, prior times the person acted as a guardian for someone, fingerprints and other personal information.

 If, after notice and the hearing, the court determines the welfare and best interests of the minor will be served by the requested appointment, the court will appoint the individual who filed the petition.  If the minor is fourteen years of age or older, the court will consider the preference of the minor.

The Berkshire Law has experience in both types of guardianships and can help you determine which is right for your situation.

Contact us today to discuss guardianships.